Alleged Facts And Ethics Violations Are Not Challenged
OAE Asserts An Absurd Legal Basis For Dismissal
The NJ Bar Association’s Office Of Attorney Ethics (OAE) “declined to docket” “at this time” the ethics complaint I filed against Murphy DEP Commissioner Shawn LaTourette (to read my August 1, 2024 complaint hit this link).
The OAE “declination” is so seriously flawed and in error, that it raises issues of either professional incompetence or political interference. It was issued on the same day the complaint was filed, so there was not even a cursory review conducted by OAE. Instead, OAE asserted a sham basis to decline.
In August 1 and August 20 letters, the OAE stated the basis for their decision.(hit this link to read the applicable OAE regulations).
Importantly, neither OAE letter challenged the facts or the ethical violations I alleged.
Instead, the OAE misinterpreted my complaint as an air pollution permit dispute (instead of an ethics matter). The OAE erroneously characterized the target of the complaint as regulatory action by DEP (instead of false, misleading and unethical statements by DEP Commissioner LaTourette). And the OAE relied on a legal interpretation of the applicable ethics regulations which is absurd on its face, as I discuss below.
In the August 1 letter, the OAE stated the following: (boldface mine):
NOTICE THAT DOCKETING IS DECLINED ON THE BASIS OF SUBSTANTIAL SIMILARITY OF PENDING LITIGATION PURSUANT TO R.1:20-3(f).
It is the determination, pursuant to R. 1:20-3(f), to decline to docket the grievance as a matter of discretion, where the criteria of the Rule are presented.
(f)Related Pending Litigation. If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if, in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. All other grievances involving such related pending civil and criminal litigation may be declined and not docketed. If the matter has already been docketed when the related pending litigation is discovered, the matter may be administratively dismissed, provided the matter is still in the investigative stage. The grievant shall be informed in writing of any decision, together with a brief statement of the reasons therefor and a copy of any Court Rule or written guideline supporting declination. Once a formal complaint has been filed, the matter shall not be dismissed nor held in abeyance pending completion of the related litigation, unless so authorized by the Director. Whenever an attorney is a defendant in any criminal proceeding, the Director shall docket the matter and may, in the Director’s discretion, investigate and prosecute the disciplinary case.
I have determined not to docket the grievance at this time (my emphasis), because related litigation is ongoing (cite). After the conclusion of the pending litigation, you make choose to resubmit a new grievance against the attorney, or to refile the same grievance.
I challenged their decision as a “a mischaracterization and misinterpretation of my grievance” and a misinterpretation and flawed application of the OAE regulatory term “related pending civil and criminal litigation” and requested reconsideration. I wrote:
Please be advised that this is purely a matter of law and ethics, not merely a policy dispute:
I was NOT referring to the DEP’s pending regulatory decisions in that matter, and explicitly stated that this was NOT a policy dispute.
My grievance is based on Commissioner LaTourette’s knowingly false statements. As you know, attorney ethics prohibit false representations of the facts and law. This is unprofessional and dishonest behavior that warrants ethical sanction.
I also called and left 2 detailed questions and statements on the OAE phone line.
On August 20, the OAE replied to respond to my criticisms and to clarify their decision.
OAE doubled down on their initial errors and made an additional misinterpretation of my complaint. OAE wrote:
This letter is in further reference to our letter to you of August 1, 2024 declining to docket your grievance on the basis of substantial similarity of pending litigation pursuant to R. 1:20- 3(f), as well as your phone call of this date requesting clarification of the declination.
Please be advised that your grievance references “ a pending Clean Air Act Title V. Operating Permit Modification sought by permit applicant Passaic Valley Sewerage Commission.” Pending litigation is meant in its broadest sense to encompass any pending litigation or pending agency or governmental action as referenced in the body of your grievance. The Office of Attorney Ethics is not the appropriate body to address your dispute regarding the actions of the New Jersey Department of Environmental Protection.
“pending agency or governmental [permit] action” is NOT “pending civil and/or criminal litigation”. And notice how the OAE omitted the terms “civil and criminal” that are used in the applicable regulation.
The compounding series of errors is incredible.
How could the OAE misconstrue an ethics complaint directed at an individual lawyer, the DEP Commissioner, for alleged false and misleading public statements, with a complaint targeted at the DEP involving a permit decision? (especially when my complaint anticipated this evasion and specifically stated that this was NOT about a policy dispute with DEP).
Worse, it boggles my mind how an OAE lawyer could interpret the phrase “related pending civil or criminal litigation” within the meaning of R. 1:20-3(f) as applicable to a regulatory permit process?
In addition to the blatant mischaracterization of my complaint, this kind of egregious legal error (i.e. “litigation” does not mean a regulatory permit process) suggests that OAE lawyers are incompetent or that there was political intervention to block OAE enforcement against a politically powerful lawyer.
When I wrote to challenge this blatant legal error, the OAE informed me that the regulations prohibit appeals of OAE decisions to decline to docket (investigate) ethics complaints (which OAE calls “grievances”).
That all amounts to an abuse of process, as far as I’m concerned.
Regardless, given that the complaint was dismissed “at this time“, I plan on refiling the complaint after the PVSC permit matter is resolved.